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Culture of Empathy Builder: Dahlia Lithwick

 

Dahlia Lithwick & Edwin Rutsch: How to Build a Culture of Empathy on the Supreme Court and Beyond

Dahlia Lithwick writes about the courts and the law for Slate and is a commentator on various national media programs such as NPR, Rachael Maddow Show, Democracy Now, etc. She has written and commented on the role of empathy in relationship to the Supreme Court, same-sex marriage and woman's issues.

There was a great deal of contention and confusion about the nature of empathy during the last Supreme Court nomination hearings. We talked about preparing now, for the next Senate discussions and debates about the role of empathy in the justice system and Supreme Court.

 

"When Obama talked about empathy in “The Audacity of Hope,” he was very, very clear.  He didn‘t want judges to make stuff up so that the poor guy wins.  What he said is, put yourself in the other person‘s shoes, right?  That was his mom‘s credo. When he talks about empathy, I think all he‘s saying is, just listen.  Listen to what the other side is saying.  See if there is merit to their argument.  And then think it through."   Sub Conference: Justice

 

 



 

 

Dahlia Lithwick & Edwin Rutsch: How to Build a Culture of Empathy on the Supreme Court and Beyond

 

 

 

 

Transcripts

  • 00:00 Introduction

  • (transcription pending)

  • (Video Transcriptions: If you would like to take empathic action and create a transcription of this video, check the volunteers page.  The transcriptions will make it easier for other viewers to quickly see the content of this video.)

 

2012-05-10 - It’s About the Empathy, Stupid
What matters isn’t just Obama’s decision to support gay marriage, but how he got there.

But it is to say that the quality whose absence Obama most lamented at the Supreme Court—empathy—has been vanishingly rare in this election cycle as well.That’s why I can’t read Obama’s words yesterday for their subtext, their super-text, or their invisible risks and calculations. I read them as a very literal reminder of what needs to happen more often during this election campaign: We need to listen to the experiences of others before dismissing them as dangerous, immoral, and wrong. Obama wrote in The Audacity of Hope, that his whole moral code was conditioned on the idea that to be able to empathize with people richer and poorer, more liberal and more conservative, is to be "forced beyond our limited vision.” Andrew Sullivan has called what Obama did yesterday “letting go of fear.” You can’t do that unless you listen to fear first, and that’s as good a descriptor as any for what the president did this week.  
 

2011-06-11 - Read Me a Story, and My Rights
Sonia Sotomayor shows Samuel Alito the value of judicial empathy.
Almost exactly two years ago, Americans went briefly but powerfully insane when President Obama had the temerity to suggest that a replacement for the retiring Justice David Souter might embody the quality of "empathy."As Obama explained it at the time, he wanted someone "who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation." Obama's foes seized on this language to insist that "empathy" was code for twisting the law to help some but not others. It stood for lawless, emotional liberal "activism." The campaign against the word empathy was successful, in its way. (The word all but dropped out of the president's judicial vernacular when he introduced the country to his next Supreme Court nominee only a year later.) 

 

 

2010-03-09 - The Unsung Empathy of Justice Stevens
Justice John Paul Stevens is the model for why empathy matters.
By Dahlia Lithwick and Sonja West
But if the retirement of Justice Stevens highlights a single value we should demand in a justice, it's got nothing to do with race or gender or even professional background and everything to do with empathy for others.

It's been almost a year since President Obama made his ill-fated remark that the quality he was seeking in a replacement for former Justice David Souter was "empathy." For anyone who may have repressed the subsequent unpleasantness, here's a brief recap:
1) Obama repurposed his words from
 The Audacity of Hope suggesting that empathy means one should "stand in somebody else's shoes and see through their eyes," and then
2) everybody went freakin' crazy.

The resulting media war on empathy, of course, completely twisted the word to mean that Obama wanted a justice who would use the Constitution as a decorative coaster and decide cases based on his or her feelings and the weather. Somewhere in the whole empathy brouhah

 

2010-04-08 - Stevens’s Real Legacy: Why the E word matters.
But the final nail in the old "empathy" coffin came when then-judge Sonia Sotomayor, on her second day of Senate testimony, explained that to the extent the president defined empathy as judging from the heart, she disagreed completely: "I wouldn't approach the issue of judging the way the president does," she testified. "Judges can't rely on what's in their heart ... It's not the heart that compels conclusions in cases, it's the law." Asked later whether she would allow empathy to cloud her jurisprudence, she was unequivocal: "My record shows that at no point in time have I permitted my personal views or sympathies to influence the outcome of a case ... In every case where I have identified a sympathy, I have articulated it and explained to the litigant why the law requires a different result." No surprise, then, that when President Obama on Friday listed the qualities he would seek in replacing Justice John Paul Stevens at the court, the word "empathy" was gone from the list. Thus we can witness the rise and fall of the E word in American judicial discourse.



2010-05-07 - Matt Barnum - The trouble with empathy
Empathy is a hard-to-define concept that does not help when evaluating judicial candidates
Clutch is to baseball what empathy is to the Supreme Court: Both can exist in a single moment—that is, a ballplayer can wrap out a clutch base hit and a jurist can write an empathetic decision. However, neither trait is all that helpful in terms of evaluating a potential major leaguer or potential justice.
Empathy, like clutch, is often in the eye of the beholder. In fact, the attachment of the empathy label says more about the beholder than it does the judge in question. This is abundantly apparent in Dahlia Lithwick and Sonja West’s recent piece in Slate, “The Unsung Empathy of Justice Stevens.” (We’ll hold aside the ridiculous use of “unsung” here—have they read any of the gushing profiles about Stevens recently?)
 

 

2009-07-25 -The Next Justice
Will the "Sotomayor standard" make it harder for Obama to seat his next justice?
Conservative groups are crowing that by staging what was, in effect, a three-day infomercial for appellate judges as mechanical umpires who simply "apply the law" by just "calling balls and strikes," Sotomayor, confirmed or not, has proved conclusively that it's John Roberts' world now—we all just rent space there. When she expressly disavowed President Obama's much-touted view that "empathy" is the most important quality a judge brings to the bench, Judge Sotomayor made it clear that—at least for the foreseeable future—we won't be hearing about empathy, real-life experiences, or noble champions of the downtrodden in connection with future court nominations.
We probably won't hear much about evolving standards of decency or living Constitutions, either.


 

2009-06-15 -  Umpire or Empathy - NYU Brennan Center for Justice - Video

 A Brennan Center for Justice NYU's Furman Hall debate on the proper qualities and role of a Supreme Court Justice.
"Umpire?" "Empathy?" Part One
Original footage from a Brennan Center debate on the proper role and qualities of a Supreme Court Justice. The panel features Stanley Fish, Burt Neuborne, and John Payton, and is moderated by Dahlia Lithwick.

 
 

"Umpire?" "Empathy?" (1/11) Youtube

  • Dahlia Lithwick

    •  moderator

    • is this a useful term?

    • is this helpful?

    • first thought this is not constitutional term?

    • empathy definition

      • I'm listening to Ginsberg? upset about strip search

      • only girls get what it's like

      •  

  • Stanley Fish - 1 (articulate)

    • neutrality -

    • doesn't use the term since people don't know what it means and people hijack the term

    • reason empathy is difficult is because it can be misunderstood

    • uses people with broad exposure

  • John Payton

    • a bit technical language

    • if empathy is to play a role

    • empathy was a disastrous term

    • a set of interests and commitments

    • Liberals love abstractions

    • Is Law autonomous - (ie does it's logic accurately model reality)

  • Burt Neuborne (good)

    • has good explanation

    • sees it as umpire is good and empathy is good.

    • tries to balance 2 views. in the middle

    You should try to understand how an opinion plays out that have lived differently than you.

Q & A - Questions:

  • Empathy is doing damage - find another word (people have difficulty with the word empathy.
    (really need a good documentary to explain the term. To educate people on it).

    • imagination

    • understanding

  • What about empathy in a adversarial system

    •  there's always a decision for one or the other

  • How can empathy be rehabilitated? -

    • textualism - strict is honest

      • has it's limits

      • can't solve questions

    • v. consequencalists

    •  

 

2009-05-26 - MSNBC - Rachel Maddow - Dahlia Lithwick - going after her on the empathy thing
The Rachel Maddow Show for Friday

May 29, 2009
Read the transcript to the Friday show
 youtube Video
video at .msnbc.msn
more Maddow transcripts
Most recent Maddow empathy”article results

 

MADDOW:  Sensing an opportunity to rally their troops, conservatives wasted no time pouncing on Sonia Sotomayor today.  Activist judge, be afraid, oh, no empathy.

The always credible Karl Rove called her an unabashed liberal.  So, is she a liberal, abashed or otherwise?  Dahlia Lithwick from Slate.com will join us next with actual legal analysis of what counts as the left these days in D.C. and in the judiciary.

But first, One More Thing about Sonia Sotomayor.  There is one troubling entry on her otherwise very impressive , especially for fans of the Boston Red Sox, the New York Mets, or almost any other Major League Baseball team...

So, I think you‘re quite right.  They are going after her on the empathy thing and on the great life story thing.  Funny, Clarence Thomas has a great life story counted as a plus for him.  But for Sotomayor, it somehow suggests she‘s unhinged.


MADDOW:  Well, what is your assessment specifically of that empathy criticism?  I mean, conservatives are saying that Obama is looking for a justice, and in Sotomayor, he has found a justice who will substitute her feelings for the law.  And I have to wonder, if that‘s just kind of obvious, you know, anti-woman politics or if that‘s crazy Supreme Court partisan politics jargon that has a totally different meaning than we would understand those words to mean in the real world?


LITHWICK:  Well, two things, Rachel
 The first is—so much of this is anti-woman politics.  I mean, so much of this has larded up with talk of her being a bully and aggressive—the kind of things that she does on the bench that Scalia can get away with, but she can‘t.  But I think your second point is really key, which really is that this is—this is kind of empathy being massively distorted by the right to mean bias.


When Obama talked about empathy in “The Audacity of Hope,” he was very, very clear.  He didn‘t want judges to make stuff up so that the poor guy wins.  What he said is, put yourself in the other person‘s shoes, right?  That was his mom‘s credo.

When he talks about empathy, I think all he‘s saying is, just listen.  Listen to what the other side is saying.  See if there is merit to their argument.  And then think it through.


It‘s a process question for him—empathy, it‘s not results-oriented.  And I think that‘s massively upended, to mean and what you‘re hearing today is, “Oh, she is results-oriented.  Oh, she cares is giving the little guy a fair shake.  She loathes white men.”
 

That‘s not what Obama meant when he talked about empathy, it certainly not something that‘s reflected anywhere in a hundreds of cases if you look at her record, that this is a person who upends the rule of law to give the little guy an extra leg up.
 

BOXER:  And you.
 

MADDOW: Sensing an opportunity to rally their troops, conservatives wasted no time pouncing on Sonia Sotomayor today.  Activist judge, be afraid, oh, no empathy.

The always credible Karl Rove called her an unabashed liberal.  So, is she a liberal, abashed or otherwise?  Dahlia Lithwick from Slate.com will join us next with actual legal analysis of what counts as the left these days in D.C. and in the judiciary.

But first, One More Thing about Sonia Sotomayor.  There is one troubling entry on her otherwise very impressive , especially for fans of the Boston Red Sox, the New York Mets, or almost any other Major League Baseball team.

 

 

2009-05-26 - Stanley Fish - Empathy and the Law
nytimes.com

President Obama wants Supreme Court justices who have empathy. What could be wrong with that, asks Dahlia Lithwick (“Once More, Without Feeling,” Slate.com): “When did the simple act of recognizing that you are not the only one in the room become confused with lawlessness, activism, and social engineering?”.....

This is the answer to Dahlia Lithwick’s question, what’s wrong with empathy? It may be a fine quality to have but, say the anti-empathists, it’s not law, and if it is made law’s content, law will have lost its integrity and become an extension of politics. Obama’s champions will reply, that’s what law always has been, and with Obama’s election there is at least a chance that the politics law enacts will favor the dispossessed rather than the powerful and the affluent. No, says Walter Williams at myrtlebeachonline: “The status of a person appearing before the court should have absolutely nothing to do with the rendering of decisions.”

And so it goes in an endless round of claims, counterclaims, accusations and dire predictions. My own prediction is that we will hear it all again once Obama announces his nominee and the drama of the confirmation hearings begins. Must-see T.V.


 

 

2009-05-23 -The Bold Standard: Wanted: a visionary minimalist for the U.S. Supreme Court.

The latest reports out of the White House have a senior administration official explaining on Thursday that when the president invokes empathy, he really means imagination—"a capacity to relate to real world experiences, a capacity to bring, when relevant, nonlegal perspectives into the court." The latest murmurings also suggest the president is looking for a persuasive writer and thinker who "can help tell a new story about justice and civil rights and the law to the American people." If it sounds slightly schizophrenic to be seeking a legal outsider who's also an insider, someone who can have "real life experiences" as well as a lofty constitutional vision, a person with "imagination" and rigor, that's because it is.

 

 

2009-05-20 - Nothing More Than Feelings
Conflating judicial empathy with gender is bad for both women and the law.

By  and 

It now seems almost a given that when the president talks about "empathy," what he really means is "woman." In fact, Obama seemed to mean several things when he stated that empathy would be a dominant factor in selecting his nominee to replace Justice David Souter. He hastily signaled his intention to nominate a woman, simply in that five of the six nominees on his shortlist are women. But he also has gone out of his way to explain that empathy means the ability to put oneself in someone else's shoes. Obama has stated that his ideal justice would consider the lives of the ordinary people who will be affected by the court's decisions in addition to the formal requirements and logic of the relevant laws.

The feeling that the Roberts Court is in need of more empathetic justices has only ramped up since this week's decision in AT&T v. Hulteen, which upheld the rights of companies to give less retirement credit for pregnancy absences before 1979 than for medical leave generally.

 

 

2009-05-15 - Crimes of Compassion: It's not just liberals who play the empathy card
By Doug Kendall and Dahlia Lithwick Posted Friday, May 15, 2009

We have heard a great deal this week from the right about the stomach-churning evils of empathy. How it's a call to "emotive," lawless, unhinged judicial conduct that turns the federal bench into a cross between Oprah's studio and a lunatic asylum. The quality of empathy—which President Obama has said is a priority in a Supreme Court pick—has been derided, mocked, scorned, and brought into close contact with Michael Steele's behind. Which makes it rather problematic when you consider that conservatives have in fact been playing the empathy card a lot more effectively than progressives in recent years.


 


2009-05-11 -Once More, Without Feeling

The GOP's misguided and confused campaign against judicial empathy.
 

One is surely entitled to say that President Obama's repeated claim that he seeks "empathy" in a replacement for Justice David Souter is something less than a crisp constitutional standard. But the Republican war on empathy has started to border on the deranged, and you can't help but wonder to what purpose.

Webster's defines empathy as "the experiencing as one's own the feelings of another." Obama, in The Audacity of Hope, described empathy as "a call to stand in somebody else's shoes and see through their eyes." To Obama, empathy chiefly means applying a principle his mother taught him: asking, "How would that make you feel? "before acting. Empathy in a judge does not mean stopping midtrial to tenderly clutch the defendant to your heart and weep. It doesn't mean reflexively giving one class of people an advantage over another because their lives are sad or difficult. When the president talks about empathy, he talks not of legal outcomes but of an intellectual and ethical process: the ability to think about the law from more than one perspective.